Can a patent be invalidated for failure to disclose the best mode?
Yes, a patent can be invalidated for failure to disclose the best mode, but only under specific circumstances. According to MPEP 2165.02:
“Failure to disclose the best mode is a basis for a defect under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph. However, the failure to disclose the best mode is not a basis for the cancellation or invalidation of a patent claim.”
This means that while failure to disclose the best mode can be a defect in the patent application, it cannot be used as a grounds for invalidating an already issued patent claim in litigation. However, it’s important to note that this limitation on invalidation only applies to patents subject to the America Invents Act (AIA), which went into effect on September 16, 2012.
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